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The Boom and Bust of Common Sense

Few phrases disturb me more than “common sense,” though I’ve often struggled to explain why it’s one of the most offensive and troubling phrases used with regularity in criminal trials. Thankfully, there’s Seth Godin to help me.

Why celebrate Halloween?

Because everyone else does.

Why believe that people once put razor blades into apples and you should only eat wrapped candies? Because everyone else believes it (it’s an urban legend).

Most of what we believe is not a result of direct experience (ever seen an electron?) but is rather part of our collection of truth because everyone (or at least the people we respect) around us seems to believe it as well.

Few people can turn Halloween into teaching opportunity, yet Godin does so in spades. For the marketer, his base reality is a chance to play the collective truth to his own advantage.

This groupthink is the soil that marketing grows in. It’s frustrating for someone who is hyper-fact-based or launching a new brand to come to the conclusion that people believe what they believe, not that people are fact-centered data processing organisms.

This is why the prosecution invariably appeals to the jurors to use their common sense, assume the things that they are naturally inclined to assume rather than hold the government to its proof. Why make them prove the existence of electrons when we all know they are there, even though we’ve never actually seen one. We believe, and that should be good enough to convict.

The problem for the defense is that government has a much bigger marketing budget than we do. They market to the public that police are the good guys, that they are there to protect and serve, that they have a sixth sense that allows them to know who’s guilty even in the absence of evidence, that they are owed our allegiance and support. We believe in the system. We believe that the system is there for us. We believe that we must support the system.

It’s not easy overcoming “common sense,” the groupthink that allows ordinary people to be confident in extraordinary decisions based on little more than widely held assumptions. There’s no way to navigate life without enjoying the quick fix of assumption, with far too many factors to consider and decisions to be made to demand proof of everything. It’s perfectly understandable. It’s also deeply problematic.

Most people believe that their common sense is pretty good. They have some serious doubts that other people’s common sense is any good (or else they would be just like them). But they feel confident that the conclusions to which they jump, based upon their life experiences, are the norm, and reflect sound and accurate thinking. Of course, they are utterly wrong. People make wrong decisions constantly. If they didn’t, they wouldn’t need courts and lawyers. Moreover, people make different decisions based upon the same data constantly. This is what makes them “special”, but also proves their fallibility. Reasonable people may differ, but they can’t all be right.

This gift to marketers is the bane of criminal defense lawyers. Where the marketer plays baseless assumption to his own advantage, the defense fights it at every turn. We argue that every iota of their being that tells them that something is more likely true than not must be ignored, rejected. We beg them to be counterintuitive. In no other area of their lives would a juror accept that the 1% probability trumps the 99. Yet they are instructed to decide a person’s guilt or innocence as they would any important decision in their own lives. This instruction is a killer. They make the most critical decisions of their lives based on nothing more than rank assumption. They do it all the time.

There’s no point in blaming the marketers for exposing the truth of human nature, as much as it makes our efforts appear untenable. People are what they are, and their brief period in the jury box isn’t going to change them. They want to be good jurors, for the most part, and deliver a fair and just verdict within the parameters of their experience. It’s just that their experience forces them to filter proof through their normal decision-making process, the one based largely on the acceptance of collective experiences. To change this is to try to stop the tide from coming in.

The more fruitful approach is to learn from the marketers. Formulate a defense theory that is as closely aligned with common experience as possible, or at least challenges it to the most limited extent possible. The more the defense appears to comport with the jurors’ accepted notions of reality, the fewer times you will need them to engage in counterintuitive reasoning. In addition, it leaves them with the belief that “common sense” is on your side, bolstering your ultimate argument for acquittal.

Of course, it’s not always possible to square the defense with common assumption. It certainly isn’t easy, given that the government gets to levy the accusations, giving them the advantage of couching their charges in a way that puts the defendant on the evil side from the outset. But to the extent we’re constrained to live with human nature, and the fact is that it’s a pretty large extent no matter how much we would prefer to deny it, we can learn from the marketers that appealing to groupthink assumptions is a whole lot easier than constantly fighting them.

Scott H. Greenfield

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